TUKARAM V. STATE OF MAHARASHTRA

BENCH:  Jaswant Singh, P.S. Kailasam and A.D. Koshal

CASE NUMBER:  Criminal Appeal No. 64 of 1977

DATE OF DECISION: 15/09/1978

CITATION: 1979 AIR (SC) 185: 1979(1) SCR 810: 1979(2) SCC 143

FACTS OF THE CASE:

• Appellant No. 1 was a Head Constable of police, was attached to the Desai Gunj police station and so was appellant No.2, who was a police constable. Mathura (PW 1) was the girl who is said to have been raped. Her parents died when she was a child and she was living with her brother, Gama (PW 3), both of them worked as laborers to earn a living. Mathura used to go the house of Nushi (PW 2) for work and during the course of her visits to that house, came into contact with Ashok, who was the sister’s son of Nushi and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife.
• On the 26 March’ 1972, Gama lodged report Ex. P-8 at police station Desai Gunj alleging that Mathura had been kidnapped by Nushi, her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao (PW 8) at whose instance all the three persons complained against as well as Mathura was brought to the police station at about 9 p.m. later the statements of the two lovers were recorded. By then it was about 10.30 p.m. and Baburao left the police station to bring some documents and have his meal. At that time the two appellants were present at the police station.
• After Baburao had gone away Mathura, Nushi, Gama and Ashok started leaving the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. Thereafter Ganpat (appellant) took Mathura into a latrine situated at the rear of the main building, loosened her under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri which served the main building. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram (appellant), who was seated on a cot nearby, came to the place where Mathura was and forded her private parts. He also wanted to rape her but was unable to do so for the reason that he was in a highly intoxicated condition.
• Nushi, Gama and Ashok, who had been waiting outside the police station for Mathura grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nushi shouted for Mathura there was no response. The noise attracted a crowd and sometime later Mathura emerged from the rear of the police station and informed Nushi and Gama that Ganpat had compelled her to undress herself and had raped her.
• Nushi took Mathura to Dr. Khune (PW 9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there.
• A few persons brought Head Constable Baburao from his house. He found that the crowd had grown restive and was threatening to beat Ganpat appellant and also to burn down the police station. Baburao however, was successful in persuading the crowd to disperse and thereafter took down the statement (Ex. 5) of Mathura.
• Mathura was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27 March’ 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girl’s clothes and the pyjama which was taken off by Ganpat.
• This appeal by special leave was filed against the judgment dated 12 Oct’ 1976 of the High Court of Judicature at Bombay (Nagpur Bench).

Proceedings at the trial and high court:

• The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. But he observed that “the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station, she had sexual intercourse and that, in all probability, this was with accused No. 2.” He added however that there was a world of difference between “sexual intercourse” and “rape”, and that rape had not been proved.

• He further observed: “Finding Nushi angry and knowing that Nushi would suspect something fishy, Mathura could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. This is why it is a possibility she might have invented the story of having been confined at the Police Station and raped by accused No. 2. Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastratkar and accused No. 2 and then concluded that the prosecution had failed to prove its case against the appellants.

• The High Court took note of the various findings arrived at by the learned Sessions Judge and then itself proceeded to shift the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the trial court was reasonably possible even though the High Court was inclined to take a different view of the facts.
• The fact that semen was found neither on the pubic hair nor on the vaginal-smears was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the meantime. The High Court proceeded to observe that although the learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he erred in appreciating the difference between consent and “passive submission”. In coming to the conclusion, the High Court remarked:

“Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the material time. Both the accused were strangers to her. It is therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from the accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at the very police station.

• In relation to Tukaram , the High Court did not believe that he had made any attempt to rape the girl but took complainant’s word for granted in so far as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat. It was in these premises that the High Court convicted and sentenced the two appellants.

OBSERVATIONS BY THE SUPREME COURT:

• Supreme Court observed that “In coming to the conclusion that the consent of the girl was a case of ‘passive submission’, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the act of sexual intercourse must be regarded as the result of fear. This reasoning suffers from two errors. In the first place, it loses sight of the fact which was admitted by the girl in cross-examination and which has been thus described in the impugned judgment.
• She asserted that after Baburao had recorded her statement before the occurrence, she and Gama had started to leave the police station and were passing through the front door. While she was so passing, Ganpat caught her. She stated that she knew the name of accused No. 2 as Ganpat from Head Constable Baburao while giving her report. She stated that immediately after her hand was caught by Ganpat she cried out. However, she was not allowed to raise the cry when she was being taken to the latrine but was prevented from doing so. She stated that she had raised alarm even when her underwear was loosened at the latrine and also when Ganpat was looking at her private parts with the aid of a torch.

• Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as ‘passive submission’.”

• Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375 of the Indian Penal Code were present in the case of the sexual intercourse attributed to Ganpat appellant.
• Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt. We have already pointed out that the fear which is spoken of is negotiated by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were all leaving the police station together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.”
• Finally Supreme Court observed that “The only allegation found by the High Court to have been brought home to Tukaram appellant is that he fondled the private parts of the girl after Ganpat had left her. The High Court itself has taken note of the fact that in the FIR, the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram. The High Court appears to have been influenced by the fact that Tukaram was present at the police station when the incident took place and that he left it after the incident. This circumstance, in our opinion, is not inculcator and is capable of more explanations than one.”

FINAL JUDGEMENT:

Supreme Court held that “we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat.” With regard to Tukaram, Court held that “We do not, therefore, propose to take the girl at her word in relation to Tukaram appellant and hold that the charge remains wholly unproved against him.”

AFTERMATH THE DECISION:

After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to THE CRIMINAL LAW (SECOND AMENDMENT) ACT, 1983 in which:

• Section 114(A) was added to Evidence Act which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent (rebuttable presumption of law).
• Section 376(A), Section 376(B), Section 376(C), Section 376(D) in IPC were also added which made custodial rape punishable (which were further amended in 2013 after Nirbhaya Rape Case).
• Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for in-camera trials, the prohibition on the victim identity disclosure and tougher sentences.